Why Should Colleges Adjudicate Rape Cases?

As several commentators noted when the UVA rape story broke (and before it unraveled), the campus rape reporting system mandated under Title IX clearly isn’t working properly, as universities tend to prioritize covering their own asses over ensuring that charges are handled justly. As UVA is hardly the first university to make a mess of this process, it seems like a no-brainer that these cases should be investigated by the police, not college administrators. Libby Nelson, however, argues that colleges should have at least some role in responding to rape allegations:

Imagine a college sexual assault case that is reported to authorities — both to local police and to campus officials. On campus, the investigation takes around 60 days, according to the Education Department’s Office for Civil Rights. In the local justice system, it can drag on even longer. In the meantime, the student who filed the complaint might have to sit next to the student she accused in class or run into him in the dining hall. A victim of sexual assault might fail a class or want to take part of the semester off.

Police departments can’t do anything about any of this. But colleges can. They can shift students’ housing assignments, campus jobs, or class schedules. They can offer free counseling services. They can give students who say they were assaulted a break from a midterm exam, or let them retake classes that they failed because they were emotionally upset in the aftermath of an assault. And they can do these things immediately, before a hearing or even an investigation is concluded. That’s one reason why colleges have a role to play when sexual assault happens on campus. Colleges can, and are supposed to, take those actions even if the police are already investigating.

It’s one thing to shuffle housing assignments and class schedules, and quite another to expel accused rapists without solid evidence of wrongdoing. The problem arises when universities are called upon to render what are essentially criminal verdicts and punishments, which only the justice system can do. But Max Ehrenfreund suggests that forcing universities to report rapes to the cops might not be such a great solution:

At the University of Virginia, the key problem appears to have been unresponsive school officials — not unresponsive cops. The victims described in the Rolling Stone account could have sought the police’s help if they wanted it, but they did not.

Now, many are saying that police should be involved in every alleged case of sexual violence. But some advocates for victims suggest that mandatory reporting to police could have unintended consequences — while ignoring the real issues of college administrators not doing enough to stop sexual assault. It could make campuses even more dangerous, they say, by discouraging students from reporting sexual assault and preventing administrators from getting the information they need to keep students safe.

Some victims of rape say they would not have notified their university if the school officials had been required to report the incident to police. Victims, some say, might not want the attention and scrutiny that comes from a criminal investigation. Others may be uncomfortable with the idea of repeatedly describing in detail what happened to them to law enforcement officers.

Alexandra Brodsky and Elizabeth Deutsch make another case for why universities need to also be involved in handling sexual assault cases, looking back at the case that established this requirement back in the 1970s:

What Alexander [v. Yale]helped to establish … is that campus rape is not just a crime but also an impediment to a continued education—and to subsequent success in the workplace and public life. That means that Title IX’s protections are necessary for an individual student’s learning opportunities and for gender equality throughout American life. If sexual violence goes unaddressed at universities, women will face unconscionable obstacles to education, professional success and full citizenship. …

Many of those who say criminal law is the single best way to handle campus sexual assault believe that bringing in the cops is the only way to put a stop to gender-based violence at colleges. Yet the gravity of these harms cannot be understood through the lens of criminal law alone. If we are truly to take sexual violence seriously, we must, as Title IX does, acknowledge that rape and harassment serve to maintain a regime of inequality in which, decades into widespread coeducation, women still cannot learn and thrive as equals to their male classmates. Yes, rape is a horrible crime. But it is also part of systemic inequality in education that we still need to fight.